Sam Uretsky

Ignorance of the Law is Current Policy

Ignorantia juris non excusat. Ignorance of the law is no excuse.
The premise of that famous legal theory is that people who engage in
an activity have a responsibility to learn what the laws are, and
don't have a right to use ignorance of the law as a defense.

If you drive, you're supposed to know what a STOP sign means, and
if you hunt, you're supposed to know where to point your shotgun. But
there's also the implicit assumption that the law is available to be
learned, that the government won't make things up on the fly and then
hold people accountable. That would be ex post facto, a law that
criminalizes conduct that was legal at the time the act was
performed, and it's a violation of the Constitution.

But the Constitution, according to George W. Bush, is "just a
[expurgative deleted] piece of paper." (Some of the sources
for that quote have since said that they only heard it second-hand,
but it does seem to conform to the spirit of the Bush administration.
In time, the quote will rank alongside Cornelius Vanderbilt's "What
do I care about law? Ain't I got the power?")

The administration has learned the power of enforcing regulations
without offering guidelines or rules. This has reportedly been a
problem for documentary filmmaker Ken Burns, who has been working on
a film about soldiers in World War II. Since it's well known that
there are no atheists in foxholes, the soldiers notoriously invoked
the Creator, but their heartfelt prayers for divine intervention may
have to be obscured as offensive under the Federal Communications
Commission.

More recently, broadcast news organizations have been dealing
with the question of whether it's appropriate to show clips of the
Commander-in-Chief using language that he apparently learned in the
Texas Air National Guard.

According to the FCC Consumer Facts, "Enforcement actions in this
area are based on documented complaints received from the public
about obscene, indecent or profane material."

Instead of having a clear set of rules, broadcast stations are
subject to the whim of the public and the delicate feelings of FCC
staffers. The penalty for a bad guess is a fine of $325,000 for each
occurrence. The result has been a policy of self-censorship that
denies reality -- even, or perhaps especially, in news and
documentary broadcasts.

The FCC isn't the only agency enforcing rules without guidelines.
In 2004, the Drug Enforcement Administration, working with a group of
pain management physicians, posted a series of guidelines for
treatment of pain. This was important, since physicians who treat
chronic pain are necessarily wary of being accused of
over-prescribing narcotics. Clear treatment guidelines, coupled with
good clinical documentation that the guidelines were followed, would
have been a legal protection for physicians. This would have allowed
more aggressive treatment of pain, and the alleviation of needless
suffering.

But the guidelines were posted on the DEA Web site in August 2004
and removed in October. Physicians who practice pain management are
faced with their own form of self-censorship -- under-treating pain
for fear of the DEA inspectors.

The most recent report of enforcement without warning comes from
the Food & Drug Administration. On July 22, the New York Times
reported that Dr. Peter Gleason, a Maryland psychiatrist, had been
arrested for promoting a drug for purposes other than those approved
by the federal government. He had been appearing at conventions and
seminars, advocating the use of sodium oxybate (Xyrem from Jazz
Pharmaceuticals) for treatment of depression and pain. Sodium oxybate
is a gamma hydroxybutyrate (GHB), a known drug of abuse, and is
approved only for treatment of narcolepsy.

While pharmaceutical manufacturers are only allowed to promote
drugs for approved uses, they have been allowed to have independent
professionals speak about their own experiences with the drugs, and
prescribers are allowed to use the drugs for outside of approved
uses. Insurance companies may not pay for drugs used for unapproved
indications, but the prescriptions are legal all the same.

Dr. Gleason admitted that he had received $100,000 for speaking
about his experiences with sodium oxybate, but the practice of
discussing non-FDA-approved uses is common and has been accepted by
the FDA. Under the Reagan administration, when the rules were changed
to permit prescribing for unlabeled uses, the FDA issued a statement
saying that the regulatory offices often can't keep up with changes
in practice. Granted, $100,000 is a lot, but there were never any
rules or guidelines setting a dollar figure. Dr. Gleason and Jazz
Pharmaceuticals may have abused the system, but there's a difference
between a loophole and a violation.

It's simple, really. By not telling how the rules are going to be
enforced, the administration can count on television stations,
physicians and anybody else to err on the side of caution. With a
climate of fear, self-censorship becomes a powerful tool, whether
it's used to limit the distribution of pain-reliving drugs or the
distribution of ideas.

Anyway, the prohibition on ex-post-facto laws applies to the
Congress, not the Executive branch. And maybe George Washington
issued a signing statement.